Tax Observatory › Assessment and litigation › Visto di conformità signed by an unauthorised professional: the VAT credit is not lost (Cassation No. 26394/2026)

Visto di conformità signed by an unauthorised professional: the VAT credit is not lost (Cassation No. 26394/2026)

The Tax Division (Sezione tributaria) of the Italian Court of Cassation has held that a missing visto di conformità (certification of the return by an authorised professional), or one issued by a professional not entered in the register kept by the Agenzia delle Entrate (Italian Revenue Agency), does not turn an existing VAT credit into a credit to be recovered. The taxpayer nonetheless remains bound to check that the professional is authorised before engaging the professional: good faith is no defence.

In order No. 26394 filed on 7 October 2026 (Fifth Civil Division, the Tax Division, ECLI:IT:CASS:2026:26394CIV), the Italian Court of Cassation laid down a clear principle of law: where the return showing a VAT credit available for offset lacks the visto di conformità (certification of the return by an authorised professional), or bears a visto signed by a person without the required authorisation, this does not in itself amount to a substantive breach, nor is it equivalent to a failure to pay. The principle also applies after the amendment of Article 10, paragraph 1, point (a), number 7, of Decree-Law No. 78/2009 made by Decree-Law No. 50/2017, provided that the credit exists and the tax authorities’ ability to audit it has not been compromised. The appellate judgment was set aside and the case remitted to the Tax Court of Second Instance for Lazio (Corte di giustizia tributaria di secondo grado) for a review of the facts.

The case

A company had reported, in its VAT return for 2017 (2018 form, filed on 28 January 2019), a credit of 259,980.97 euros, which it offset in 2018 and 2019. The visto had been signed by a professional who, between 2016 and 2020, was not entered in the register of authorised persons kept by the Regional Directorate. The Agenzia delle Entrate (Italian Revenue Agency) recovered the entire credit, with interest and penalties, without disputing that the credit existed. The courts of first and second instance (Lazio, judgment No. 5763/18/2023) found for the tax office: a visto signed by an unauthorised professional is equivalent to no visto at all.

The company raised three grounds of appeal on points of law. The third, alleging a failure to rule on the grounds raised before the second-instance court concerning the reasons stated in the notice and the penalty, was dismissed: those grounds did not need to be decided (assorbiti) in view of the decision on the visto (Cassation No. 2334/2020) and may be re-examined in the proceedings following remittal. The Court did not follow the Prosecutor General (Procuratore generale), who had asked for a decision on the merits under Article 384, paragraph 2, of the Code of Civil Procedure.

First ground dismissed: the taxpayer must check the authorisation

On this point the Court upheld the findings of the courts below. A taxpayer who intends to offset a VAT credit exceeding 5,000 euros per year must ascertain, before engaging the professional, that the professional is entered in the register, by consulting the service “Ricerca professionisti abilitati all’apposizione del visto di conformità” (search for professionals authorised to issue the visto di conformità) on the Agenzia’s website. Neither the tax office’s duty to provide information (Article 6, paragraph 2, of Law No. 212/2000), nor the protection of legitimate expectations (Article 10, paragraph 1), nor the right to be heard before the notice is issued (contraddittorio endoprocedimentale) is engaged: there is no apparently favourable administrative conduct on which an expectation could be founded. Negligence in choosing the professional is not excusable.

Second ground upheld: a formal breach, not a failure to pay

The core of the decision lies in the interpretation of Article 10, paragraph 1, point (a), number 7, of Decree-Law No. 78/2009, converted into law by Law No. 102/2009, in the wording in force from 2017. On the Court’s reading, the provision distinguishes two cases. The first is the inaccurate visto (visto infedele): one issued by an authorised professional who certifies checks not carried out in accordance with Article 2 of Ministerial Decree No. 164/1999; it is penalised under Article 39, paragraph 1, point (a), of Legislative Decree No. 241/1997 (258 to 2,582 euros). The second is the omitted visto, whether absent or signed by an unauthorised person; for this the provision requires recovery of the credit offset, with interest and penalties.

The provision for recovery, the Court observes, does not dispense with the need to verify whether the conduct caused any actual harm (offensività), on the pattern of Article 10, paragraph 3, of Law No. 212/2000 (no penalty for a merely formal breach where no tax is owed) and Article 6, paragraph 5-bis, of Legislative Decree No. 472/1997 (breaches that cause no concrete prejudice to the audit and do not affect the tax base, the tax or the payment are not punishable). The visto serves as an advance check, entrusted to a qualified third party, that the credit exists and is due; if the credit exists and is due and the breach has not hindered the audit, the irregularity remains formal and does not justify recovering the credit as if it were non-existent or not due. The Court refers to its own precedents Cassation No. 5289/2020, No. 7154/2025 (a breach “not punishable for want of harm”) and No. 26020/2026, and makes clear that not even Constitutional Court judgment No. 144/2024, although it stressed the public function of the visto, linked every irregularity to the automatic loss of the right to offset.

The “light” visto requires a substantive check

Referring to Cassation No. 8845/2026, the order reiterates that even the light visto requires the professional to carry out a substantive, and not merely documentary, check of the data in the return. The professional must meet the professional standard of care required by Article 1176, paragraph 2, of the Civil Code and perform the checks under Article 2 of Ministerial Decree No. 164/1999: matching the data against the supporting documents and against the rules on deductions and credits (paragraph 1) and, for the visto required by Article 10 of Decree-Law No. 78/2009, verifying that the accounting records are properly kept and that the return, the records and the documents are consistent with one another (paragraph 2). The person who signs the visto is liable if it proves to be false. It follows, in our view, that the visto does not replace proof that the credit exists, the burden of which remains on the taxpayer.

The current penalty framework and the open questions

For breaches committed on or after 1 September 2024, Article 13 of Legislative Decree No. 471/1997, rewritten by Legislative Decree No. 87/2024, imposes a penalty of 25 per cent for the use of credits not due (paragraph 4-bis) and of 70 per cent for the use of non-existent credits (paragraph 5), as defined in Article 1, paragraph 1, points (g-quater) and (g-quinquies), of Legislative Decree No. 74/2000. Paragraph 4-ter provides for a penalty of 250 euros where the credit is used without ancillary formalities whose omission does not entail forfeiture, provided the omission is remedied by the deadline for the income tax return for the year of the breach. The visto is not required on pain of forfeiture, so its absence does not make the credit “not due” within the meaning of number 3 of point (g-quinquies). It does, however, fall within the ancillary formalities of paragraph 4-ter (250 euros if the breach is remedied by the deadline for the income tax return for the year of the breach or, where no return is due, within one year); if the breach is not remedied within those time limits, the case falls under the second sentence of paragraph 4-bis, which extends the 25 per cent penalty to credits used without formalities that are not required on pain of forfeiture. The tax office could also rely on number 1 of the same point, since Article 10 of Decree-Law No. 78/2009 speaks of credits “used in breach of the prescribed procedures”. The principle stated in the order, based on the absence of harm, and Article 6, paragraph 5-bis, of Legislative Decree No. 472/1997 lead instead to the conclusion that no penalty applies where the credit exists and the audit is not prejudiced. The point is unsettled: the prudent course is to remedy the breach within the time limit of paragraph 4-ter and to warn the client of the risk of the 25 per cent penalty.

As to the instrument of recovery, the 2009 provision still refers to the notice under Article 1, paragraph 421, of Law No. 311/2004. For notices issued on or after 30 April 2024, however, Article 38-bis of Presidential Decree No. 600/1973, introduced by Legislative Decree No. 13/2024, applies; that decree repealed paragraphs 421 to 423 while preserving the effects of earlier notices. The notice must be served within a preclusive time limit (a pena di decadenza): by 31 December of the fifth year following the year of use for credits not due, and of the eighth year for non-existent credits; payment is due within the time limit for challenging the notice before the tax court (ricorso) and cannot be made by offset. The consolidated Act on tax penalties (Legislative Decree No. 173/2024) and the consolidated Act on assessment are not yet applicable: the provisions cited here remain in force until 31 December 2026 and the consolidated Acts take effect on 1 January 2027.

In practice

• Before having the visto issued for VAT offsets above 5,000 euros per year, the business should consult the service “Ricerca professionisti abilitati all’apposizione del visto di conformità” on the Agenzia’s website, check the surname and province of the person who will sign, and print the result with the date; the printout should be kept in the return file throughout the period open to assessment.
• The professional should check his or her own entry in the register every year, in particular after a change of tax domicile, and keep proof that the Regional Directorate was notified (Circular No. 7/E of 2015).
• If a recovery notice (atto di recupero) is received that is based solely on the lack of authorisation, the taxpayer should prove that the credit exists and is due (VAT registers, periodic VAT settlements, invoices) and show that the audit was not hindered; the formal nature of the breach should be pleaded under Article 6, paragraph 5-bis, of Legislative Decree No. 472/1997 and Article 10, paragraph 3, of Law No. 212/2000, citing Cassation No. 26394/2026, No. 7154/2025 and No. 5289/2020.
• For offsets made before 1 September 2024, ravvedimento operoso (voluntary correction with reduced penalties) serves no purpose if the breach is formal and not punishable. For later offsets, until the point is clarified, the prudent course is to file an amended return (dichiarazione integrativa) bearing the visto of a registered professional by the deadline for the income tax return for the year of the breach and to pay, through ravvedimento, the fixed penalty of 250 euros under Article 13, paragraph 4-ter, of Legislative Decree No. 471/1997: remedying the breach within the time limit rules out the 25 per cent penalty of paragraph 4-bis.
• In pending tax litigation raising the same issue, the order should be filed and the court asked to establish on the facts whether the audit was affected; the same argument supports an application for autotutela (annulment by the tax office of its own act, Articles 10-quater and 10-quinquies of Law No. 212/2000) and, in the dispute-avoidance procedures, the request that the claim be annulled. Good faith in the choice of the professional should not be relied on: the Court has ruled it out.

Frequently asked questions

Will the Agenzia nonetheless recover a VAT credit offset with an irregular visto?

According to Cassation No. 26394/2026, no, if the credit exists and is due and the breach has not hindered the audit. The mere lack of authorisation of the professional is not enough to justify recovery: it is necessary to establish that the credit exists and to assess on the facts how the breach affected the audit. In the case decided, the Agenzia had not disputed that the credit existed; as a general rule it is for the taxpayer to document it with registers, periodic settlements and invoices. The case was remitted to the lower court precisely for this review.

Can I defend myself by arguing that I did not know the professional was not registered?

No. The Court dismissed the ground based on legitimate expectations and on the tax office’s duty to provide information (Articles 6 and 10 of Law No. 212/2000): the taxpayer must check the entry in the Agenzia’s public register before engaging the professional. The defence should be built on the formal nature of the breach, not on good faith.

What does an authorised professional risk by issuing the visto without adequate checks?

For an inaccurate visto, he or she is liable to the penalty under Article 39, paragraph 1, point (a), of Legislative Decree No. 241/1997 (258 to 2,582 euros), to suspension for one to three years and, in repeated or serious cases, to disqualification; paragraph 2 of the same Article provides that the measure is forwarded to the professional body to which he or she belongs. Cassation No. 8845/2026 also held the professional jointly and severally liable with the company for the tax (in that case, excise duty) offset against a non-existent VAT credit certified by the visto: the light visto requires a substantive check of the documents.

Sources

Court of Cassation, Fifth Civil Division, order No. 26394 filed on 7 October 2026, ECLI:IT:CASS:2026:26394CIV (full text from Italgiure)

Article 10, paragraph 1, point (a), number 7, of Decree-Law No. 78 of 1 July 2009, converted into law by Law No. 102 of 3 August 2009 (Normattiva, text in force on 9 November 2026)

Articles 35 and 39 of Legislative Decree No. 241 of 9 July 1997 (Normattiva, text in force on 9 November 2026)

Article 2 of Ministerial Decree No. 164 of 31 May 1999 (Normattiva, text in force on 9 November 2026)

Article 6, paragraph 5-bis, of Legislative Decree No. 472 of 18 December 1997 (Normattiva, text in force on 9 November 2026)

Article 10 of Law No. 212 of 27 July 2000 (Normattiva, text in force on 9 November 2026)

Article 13, paragraphs 4, 4-bis, 4-ter and 5, of Legislative Decree No. 471 of 18 December 1997, and Article 1, paragraph 1, points (g-quater) and (g-quinquies), of Legislative Decree No. 74 of 10 March 2000 (Normattiva, text in force on 9 November 2026)

Article 38-bis of Presidential Decree No. 600 of 29 September 1973; Article 1, paragraphs 2 and 4, and Article 41, paragraph 2, of Legislative Decree No. 13 of 12 February 2024 (Normattiva, text in force on 9 November 2026)

Agenzia delle Entrate, service “Ricerca professionisti abilitati all’apposizione del visto di conformità”; Circular No. 7/E of 26 February 2015